Opposition Brief — Atterberry v. Jordan

—s

| Omice Supreme Court, US. |

i FILED

@) JAN § 1985

No. 84-631.

ALEXANDER L. STEVAS,

CLERK

In the

Supreme Court of the United States.

OcTOBER TERM, 1984.

JEANETTE ATTERBERRY,

PETITIONER,

Vv.

JOSEPH M. JORDAN, AS HE IS

POLICE COMMISSIONER OF THE CITY OF BOSTON,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS.

Respondent’s Brief in Opposition.

NICHOLAS FOUNDAS, KELAM S. DERDERIAN,

Legal Advisor, Assistant Corporation Counsel,

Boston Police Department, City of Boston,

154 Berkeley Street, City Hall,

Boston, Massachusetts 02116. Boston, Massachusetts 02201.

(617) 247-4550 (617) 725-4022

Counsel of Record for Respondent.

BATEMAN & SLADE. INC. BOSTON, MASSACHUSETTS

IS

Table of Contents.

Statement of the case

Prior proceedings

Statement of the facts

Reasons for denying the writ

I. The question presented for review by petitioner

misstates the holding of the Massachusetts Su-

preme Judicial Court

II. The Massachusetts Supreme Judicial Court fol-

lowed established Supreme Court precedent in

holding that where a police department places re-

strictions on the activities of its employees, a ra-

tional basis provides the appropriate standard of

review

III. Rule 110, § 22D of the rules and regulations of

the Boston Police Department is rationally related

to the promotion of an efficiert law enforcement

agency

A. Police regulations similar to Rule 110, § 22D

have previously withstood constitutional chal-

lenges identical to those presented by petitioner

B. The instant case is factually distinguishable

from Pienta v. Schaumburg, and its holding re-

sulted from an erroneous application of law

C. Rule 110, § 22D of the rules and regulations of

the Boston Police Department is valid notwith-

standing that it regulates the activities of officers

during off-duty hours

Conclusion

Statutory appendix

wn NY NN

10

11

ii

Table of Authorities Cited.

. CASES.

Atterberry v. Police Commissioner of Boston, 392

Mass. 550 (1984) 4

Broadrick v. Oklahoma, 413 U.S. 601 (1973) 5

Broderick v. Police Commissioner of Boston, 368

Mass. 33 (1975), cert. denied sub nom. Broderick v.

diGrazia, 423 U.S. 1048 (1976) 9, 10

Kelley v. Johnson, 425 U.S. 238 (1976) 5, 6, 7,9

Loughran v. Codd, 432 F. Supp. 259 (E.D. N.Y. 1976) 5,

6, 7,9

Pickering v. Board of Education, 391 U.S. 563 (1968) = 5

Pienta v. Schaumburg, 710 F.2d 1258 (7th Cir. 1983) 8,9

Rizzo v. Goode, 423 U.S. 362 (1976) 5,6,9

United States Civil Service Com. v. Letter Carriers, 413

U.S. 548 (1973) 5

STATUTES.

Massachusetts General Laws

c. 41, § LIIF 2, 6

Massachusetts Acts of 1906, c. 291, §§ 7, 11 as amend-

ed by Acts of 1962, c. 322, § 1 5, 10

MISCELLANEOUS.

Rules and Regulations of the Boston Police Department

Rule 110, § 22D 2, 3, 4, 5, 6 et seq.

Special Order 83-1 pe

No. 84-631.

In the

Supreme Court of the United States.

OCTOBER TERM, 1984.

JEANETTE ATTERBERRY,

PETITIONER,

Vv.

JOSEPH M. JORDAN, As HE Is

POLICE COMMISSIONER OF THE CITY OF BOSTON,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS.

Respondent’s Brief in Opposition.

The respondent respectfully requests that this Court deny

the petition for a writ of certiorari to review the judgment of

the Supreme Judicial Court of Massachusetts in this case.

2

Statement of the Case.

Prior Proceedings.

The respondent adopts the statement of prior proceedings

contained in the decision of the Massachusetts Supreme Judi-

cial Court. Petition for Certiorari (hereinafter “P.”) at 2a-3a.

On July 19, 1984, the Supreme Judicial Court issued its

decision, affirming the judgment of the Massachusetts Superior

Court (P. la-9a). Thereafter, the petitioner filed a petition for

a writ of certiorari with this Court.

Statement of the Facts.

The petitioner is a police officer employed by the Boston

Police Department. On July 8, 1981 petitioner, while on duty,

was involved in an automobile collision as a result of which

she sustained a fractured pelvis, fractured ribs and a severe

mace burn. Since July 8, 1981 to the present, petitioner has

been carried injured on duty without loss of pay pursuant to

Massachusetts General Laws c. 41, § 111F (P. 3a).

Rule 110, § 22D of the Rules and Regulations of the Boston

Police Department provides in part that “[t}he Police Commis-

sioner may not allow pay from accumulated sick credit or for

injury on duty status if the reported sickness or injury proves

to be feigned, simulated or exaggerated, or: ... D. If the

officer shall fail to remain at his residence unless permitted

by the Police Commissioner to go elsewhere” (P. 22a).

- On January 5, 1983 the Commissioner promulgated Special

Order 83-1 which set out administrative procedures to ensure

compliance with Rule 110, § 22D and to also provide an equit-

able method for police officers to obtain permission to leave

their residences for valid purposes (P. 23a-25a).

3

At the hearing on the merits, the parties submitted the case

to the Superior Court on the pleadings and a stipulation that

“It]here are presently 1,778 total sworn members of the Boston

Police Department, of which 1,548 are patrol officers and

detectives. . . . On January 5, 1983 Department records show

a total of 184 sworn members of the Department were on. sick

or injured status, of which 169 were patrol officers or detec-

tives. Of the total figures of 184, 117 had been on sick or

injured status over 30 days, of which 109 are patrol officers

or detectives. . . . Boston Police Department Rule 110 and

Special Order 83-1 have been submitted to the Court as

exhibits” (P. 3a).

On numerous occasions prior to January 5, 1983 the peti-

tioner sought permission to leave her residence, which was

sometimes granted and at other times denied (P. 3a). The

petitioner, at the time of the trial of this case, was one of 109

patrol officers or detectives out of a force of 1,548 who were

on sick or injured status for more than 30 days (P. 6a).

Reasons for Denying the Writ.

I. THE QUESTION PRESENTED FOR REVIEW BY PETITIONER

MISSTATES THE HOLDING OF THE MASSACHUSETTS

SUPREME JUDICIAL COURT.

Petitioner has phrased the question presented for review

herein as a constitutional challenge to a rule and special order

of the Boston Police Department “which require Boston Police

officers on injured-on-duty leave to remain at their residences

at all times unless permitted by the Police Commissioner to

go elsewhere”.

Respondent submits that this is not the issue either decided

by the Massachusetts Supreme Judicial Court or an accurate

4

summary of the provisions of Boston Police Department Rule

110, § 22D and Special Order 83-1 (see P. 22a-25a).

The police department’s rule and order do not totally prohibit

police offficers from leaving their residences while on injured-

on-duty status. The rule and order merely require officers on

leave because of illness or injury to notify the department

before leaving their homes for certain specified purposes and

to obtain permission from their commanding officers before

leaving their homes for any other reason. Nothing in the rule

or order prohibits police officers from leaving their residences

at any time for any particular purpose so long as prior approval

has been obtained from their commanding officer.

The instant case was presented to and decided by the Mas-

sachusetts Supreme Judicial Court on this basis. The Court

carefully emphasized that it was deciding only the facial con-

stitutionality of the rule and order that requires police officers

on leave because of illness or injury to notify the department

before leaving their homes for certain specified purposes and

to obtain permission from the department before leaving their

homes for any other reason. Atterberry v. Police Commissioner

of Boston, 392 Mass. 550, 556-557 (1984). The Court did not

decide the constitutionality of a rule that places a total prohib-

ition on leaving the home or a rule that sets no standards for

deciding whether permission should be granted or denied.

II. THE MASSACHUSETTS SUPREME JUDICIAL CouRT FOoL-

LOWED ESTABLISHED SUPREME COURT PRECEDENT IN

HOLDING THAT WHERE A POLICE DEPARTMENT PLACES

RESTRICTIONS ON THE ACTIVITIES OF ITS EMPLOYEES, A

RATIONAL BASIS PROVIDES THE APPROPRIATE STANDARD

OF REVIEW.

The United States Supreme Court has held that government

agencies have legitimate interests as employers in restricting

5

the activities of their employees that differ significantly from

those possessed in connection with regulation of the general

populace. Pickering v. Board of Education, 391 U.S. 563,

568 (1968). For example, the Court has sustained comprehen-

sive and substantive restrictions upon First Amendment Rights

of both federal and state employees. United States Civil Service

Com. v. Letter Carriers, 413 U.S. 548, 556 (1973). Breadrick

v. Oklahoma, 413 U.S. 601, 618 (1973).

In this light, the Court in Kelley v. Johnson, 425 U.S. 238,

245 (1976), recognized that a police department may place

significant restrictions on its members so long as there exists

a rational connection between the regulation and the advance-

ment of the efficient operation of the law enforcement agency.

Thus, the focus in this case is whether the Police Commissioner

can demonstrate a rational relationship between Rule 110,

§ 22D of the Rules and Regulations of the Boston Police De-

partment and the promotion of an efficient police force. Kelley,

425 U.S. at 247.

This Court has recognized that a municipality’s choice of

organization, regulation and control of its police force should

be accorded great deference. Jd. at 245; Rizzo v. Goode, 423

U.S. 362, 378, 379 (1976). Massachusetts statutes provide

that the city of Boston Police Department be under the com-

mand of an experienced law enforcement officer who has broad

authority over the operation and administration of the depart-

ment including the authority to promulgate all needful rules

and regulations for the efficiency of the force. The statutes

also provide that members of the department are subject to

department rules and regulations whether on or off duty. Mas-

sachusetts Acts of 1906, c. 291, §§ 7, 11, as amended by Acts

of 1962, c. 322, § 1.

The rational relationship analysis has been applied to a case

identical to the instant case. Loughran v. Codd, 432 F. Supp.

6

259 (E.D. N.Y. 1976). The court, citing Kelley, noted that

“Loughran seeks the court’s protection not as an ordinary citi-

zen, but as an emplovee of the New York City Police Depart-

ment”. /d. at 263. Similarly, plaintiff here seeks a declaration

of her rights as a Boston Police Officer. Recognizing that

government agencies have been granted the widest latitude in

the dispatch of their own affairs, Rizzo v. Goode, 423 U.S.

at 362, the court held that the compelling state interest test

which would be appropriate in the context of a civilian com-

plaint, should play no part where the challenge is by a city

employee and is directed at an agency’s internal poticy. Lough-

ran v. Codd, 432 F. Supp. at 263. Therefore, the proper

standard of review in the present case, keeping in mind the

Supreme Court’s warnings against judicial intervention into

administrative functions, is whether the promulgation enacted

is SO irrational that it may be branded arbitrary, and therefore,

a deprivation of plaintiff’s constitutional rights. Loughran v.

Codd, 432 F. Supp. at 263; Kelley v. Johnson, 425 U.S. at 248.

Ill. Rute 110, § 22D oF THE RULES AND REGULATIONS OF

THE BosTON POLICE DEPARTMENT Is RATIONALLY RE-

LATED TO THE PROMOTION OF AN EFFICIENT LAW ENFORCE-

MENT AGENCY.

A. Police Regulations Similar to Rule 110, § 22D have

Previously Withstood Constitutional Challenges Identical

to Those Presented by Petitioner.

Respondent submits that it provides liberal benefits to its

police officers suffering from injury or sickness, See M.G.L.

c. 41, § 11IF. Petitioner has suffered no loss of pay since the

date of her original injury, July 8, 1981, and, she continues

to receive her full salary. In an effort to limit the potentialities

7

for abuse, respondent has promulgatec Rule 110, § 22D. The

regulation attempts to “track the individual rehabilitative prog-

ress of the disabled member and to foster his expeditious return

to duty”. Loughran v. Codd, 432 F. Supp. at 264.

The Loughran court recognized the legitimate need for a

police department to control abuses of sick and injury leave.

id. at 263. At the time of trial, there were 117 Boston Police

Officers who had been on injured status or sick leave more

than thirty days and 67 other officers who had been injured

or sick for less than thirty days. These figures represent a

significant percentage of the total working force and present

a serious reduction in manpower. Consequently, the public

and the police department experience shortages in police pro-

tection while these officers recuperate. It is in the public’s best

interest that the Police Commissioner minimize unnecessary

absences from duty. The promotion of public safety is “unques-

tionably at the core of the State’s police power”. Kelley v.

Johnson, 425 U.S. at 247.

Rule 110, § 22D, like the New York City Police regulation

in Loughran, requires that officers call the department when

they need to leave their residences. Such a regulation does not

place an unconstitutional burden on petitioner. /d. at 265.

Rather, it provides for a rational method for the respondent to

insure that officers receiving compensation for injuries are not

undertaking tasks which may hinder their rehabilitation. The

instant case and Loughran illustrate the need to supervise of-

ficers’ rehabilitation. In Loughran, the officer was found to

be coaching the Police Department’s football team whiie on

injured leave. /d. at 266. Petitioner here has been receiving

full pay while injured since July 8, 1981.

In addition, the respondent has promulgated Special Order

No. 83-1 which more efficiently implements Rule 110, § 22D.

This order permits officers out injured or sick to simply contact

8

the Police Department’s Operations Division to receive permis-

sion to leave their residence for certain specific purposes.

Respondent submits that Rule 110, § 22D clearly provides

a rational connection to the respondent’s legitimate attempt to

curtail abuses of injured on-duty compensation and to provide

a more efficient police force serving the needs of the citizens

of Boston. For this Court to rule otherwise would cripple all

attempts by government agencies at all levels to efficiently

administer their internal affairs and would be contrary to con-

trolling precedent.

B. The Instant Case is Factually Distinguishable from

Pienta v. Schaumburg, and Its Holding Resulted from an

Erroneous Application of Law.

Petitioner almost entirely relies on a recent federal case that

reaches a decision contrary to the instant case and controlling

precedent. Pienta v. Schaumburg, 710 F.2d 1258 (7th Cir.

1983). Pienta involved a constitutional attack on a police de-

partment regulation relative to injured status or sick leave. /d.

at 1259. Unlike respondent’s Rule 110, § 22D and Special

Order 83-1, the Schaumburg Police Department had promul-

gated a regulation which denied officers the privilege of leaving

their residence for all but medical reasons. /d. at 1259, 1260.

The Schaumburg regulation effectively foreclosed officers’

right to vote, right to free exercise of religion, and the right

to travel.

Clearly such restrictions are much harsher than the rules

and procedures established by the respondent Police Commis-

sioner. Special Order 83-1 specifically sets forth permissible

requests for leaving one’s residence while on injured or sick

leave which include attending church services, caring for minor

children, and voting. The order also provides a method for

officers to seek permission to leave their residence for other

reasons.

9

In addition to the gross dissimilarities between the Schaum-

burg regulation and respondent’s rule and order, the court in

Pienta applied an :acorrect standard of review. The court held

that it should employ a compelling interest test when determin-

ing the validity of a police department’s internal regulations

when the employees’ constitutional rights are involved. /d. at

1260. Such an interpretation ignores the Supreme Court opin-

ions in Kelley and Rizzo.

As the Loughran court correctly stated, only when the re-

striction serves to penalize the practice of a constitutional free-

dom must the state proffer a compelling reason in order to

justify the infringement. Loughran v. Codd, 432 F. Supp. at

263. Clearly providing benefits to police officers who are

disabled cannot be considered a penalty merely because the

employer places restrictions on their activities.

Concededly, Schaumburg’s regulation was greatly restric-

tive. However, the proper standard of review was a rational

connection test as employed in Kelley. Thus, not only is the

present case factually different but also the application of law

in Pienta was erroneous and should not be followed.

C. Rule 110, § 22D of the Rules and Regulations of the Bos-

ton Police Department is Valid Notwithstanding that it

Regulates the Activities of Officers During Off-Duty

Hours.

Respondent submits that he has the power and legitimate

need to regulate the activities of officers who are out injured

or sick during what would be off-duty hours. See Broderick

v. Police Commissioner of Boston, 368 Mass. 33, 41 (1975),

cert. denied sub nom. Broderick v. diGrazia, 423 U.S. 1048

(1976). (Commissioner may make inquiry into the activities

of police officers during off-duty hours.) In an effort to foster

the expeditious return of disabled officers, it is necessary to en-

10

sure that the officers are acting in a manner which would

facilitate rehabilitation. Therefore, any attack on Rule 110,

§ 22D based upon the regulation of non-duty hous is foreclosed

by Broderick and the Police Commissioner’s authority to prom-

ulgate regulations which officers must obey both on and off

duty. See Massachusetts Acts of 1906, c. 291 as amended by

Acts of 1962, c. 322.

Conclusion.

For the foregoing reasons the respondent respectfully re-

quests that the petition for a writ of certiorari be denied.

Respectfully submitted,

NICHOLAS FOUNDAS, KELAM S. DERDERIAN,

Legal Advisor, Assistant Corporation Counsel,

Boston Police Department, City of Boston,

154 Berkeley Street, City Hall,

Boston, Massachusetts 02116. Boston, Massachusetts 02201.

(617) 247-4550 (617) 725-4022

Counsel of Record for Respondent.

11

Statutory Appendix.

MASSACHUSETTS ACTS OF 1906, c. 291, §§ 7, 11,

As AMENDED BY MASSACHUSETTS ACTS OF 1962, c. 322, § 1.

Section 7. There shall be in the city of Boston a department,

known as the police department, which shall be under the

charge of an officer, known as the police commissioner, ap-

pointed by tne mayor for a term of five years commencing on

May first of the year in which he is appointed, except that any

vacancy in said office shall be filled for the balance of the

unexpired term. Such officer shall at the time of his appoint-

ment have had at least ten years’ experience as a member of

a federal, state or local police force or law enforcement agency.

Notwithstanding the provisions of section fourteen of chapter

four hundred and eighty-six of the acts of nineteen hundred

and nine such officer may, after notice and hearing, be removed

by the mayor of said city for cause. Such officer shall not

engage in any other business, and shall receive an annual salary

of fifteen thousand dollars or such other sum as may from

time to time be fixed by the city council with the approval of

the mayor.

Section 11. The police commissioner shall have cognizance

and control of the government, administration, disposition and

discipline of the department, and of the police force of the

department and shall make all needful rules and regulations

for the efficiency of said police; provided, however, that no

such rule or regulation shall forbid any officer or member of

said police from organizing or belonging to any organization

composed solely of officers or members, or both, of said police

and not affiliated with any outside organization other than the

Massachusetts Police Association, and having among its objects

12

the improvement of their conditions of employment, including

leaves of absence, hours of labor and compensation. Officers

and members of said police shall, whether on or off duty, be

subject to the rules and regulations made under this section.

Any officer or member of said police shall have the right

to petition the general court or the city council of said city

and to appear before any committee thereof; provided, that

this paragraph shall not authorize any officer or member to

absent himself from duty without permission.